This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

Winter 2008

On January 28, 2008, a new Family and Medical Leave Act ("FMLA") covered leave became effective when President Bush signed the National Defense Authorization Act for Fiscal Year 2008 ("NDAA"), Pub. L. 110-181. While the law is immediately effective, the Department of Labor ("DOL") still must issue regulations and guidance for employers. Until the new regulations and guidance are issued, the DOL "encourages employers to provide this type of leave to qualifying employees."

The NDAA has enacted two significant changes to the FMLA. First, an eligible employee is permitted to take up to 12 workweeks of leave "because of any qualifying exigency" where the "spouse, son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces." Because the term "qualifying exigency" is undefined, we recommend employers consult legal counsel if an employee seeks leave for a "qualifying exigency."

Second, an eligible employee who is a "spouse, son, daughter, parent or next of kin" is now permitted to take up to 26 workweeks of Servicemember Family Leave during any single 12-month period to care for a "covered servicemember." A covered servicemember "means a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or on the temporary disability list, for a serious injury or illness." The serious injury or illness must be incurred by the servicemember "in the line of duty while on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating." This leave may be taken on an intermittent basis also.

The new provisions of the FMLA provide that the combined total of leave for an eligible employee during any "single 12-month period... shall be... a combined total of 26 workweeks" for Servicemember Family Leave. An eligible employee that takes Servicemember Family Leave during any single 12-month period is still entitled to receive up to 12 workweeks of leave for the a) birth of a child or to care for such child; b) adoption of a child or foster care of a child; c) care for a spouse, child, or parent of the employee who has a serious health condition; d) serious health condition of the employee unable to perform the essential functions of the job; and e) "qualifying exigency" (but only after DOL issues regulations and guidance on this) during any other 12-month period.

Employers may require that leave for a "qualifying exigency" be supported by a certification issued at the time and in such manner as the DOL may by regulation require. The employer may also require certification for taking Servicemember Family Leave. The employee would be required to provide such certification to the employer in a timely manner.

Employers should review employee policies and procedures to ensure that such policies and procedures comply with the new law. Be sure that persons who manage FMLA leave authorization are aware of the new leave in case employees seek to take leave for a new covered reason. Remember that employers must follow the respective leave law, whether federal or state, that provides the greatest benefit to the employee. Retaliation for seeking information about or using FMLA covered leave is strictly prohibited. Employers should consult legal counsel as necessary.